The Editorial Board

Case note: NHV v Minister for Justice & Equality

NHV v Minister for Justice & Equality: A Critique of the Refugee Act 1996 and Direct Provision

Luke Mooney-Foley, 5th Year, Piper’s Hill College

This article is the winning article from the TCLR Secondary Schools Competition 2017-18

This article concerns the Refugee Act 1996 and the judgment of the Supreme Court in NHV v Minister for Justice & Equality,[1] in which it was held that s 9(4) of the Act was unconstitutional, for the reason that it infringed upon the Constitutional right of all persons, irrespective of their citizenship of the State, to work.

Section 9 of the Refugee Act 1996 provides that a person who applied in the State for refugee status is entitled to remain in the State, while their application for refugee status is being considered. Section 9(4)(b) of the Act provides though, that the applicant may not ‘seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration’. During the period while his or her application is being considered, the applicant is obliged to live in accommodation provided by the State, which is known as Direct Provision. Under this system, applicants for refugee status are also provided with items to satisfy their most basic needs, such as meals, heat, and light.

In NHV, the Applicant challenged the constitutionality of s 9(4)(b) of the Act and argued that the requirement to live in Direct Provision and the associated prohibition on seeking employment was an unconstitutional infringement upon the Applicant's personal rights. The Applicant argued that while he was not a citizen of the State, he was irrespectively entitled to avail of the unenumerated rights provided by art 40.3, including the right to work.

Inasmuch as a person seeking refugee status does not qualify as a citizen of the State, the question is raised of whether a non-citizen may rely on the provisions of the Constitution. This question was considered in the course of NHV. In the judgement of NHV, O'Donnell J considered the legitimate concerns justifying a differentiation of citizens of the state and persons who seek refugee status in the State.

The Respondent maintained that the number of successful asylum seekers is a small minority, with respect to the total number of applicants for refugee status. The Respondent also relied upon the grounds that if a capacity to access the labour market was granted to applicants, there would be a significant upsurge in applications for asylum and that this access to the labour market would provide for difficulties in removing an asylum seeker whose application was determined adversely to their interests.[2]

In his judgement, O'Donnell J also gave respect to the European Union Charter of Fundamental Rights and the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights.[3] Article 15 of the European Union Charter of Fundamental Rights provides, inter alia, that ‘veryone has the right to engage in work and to pursue a freely chosen or accepted occupation’.[4] Moreover, the extract from the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights relied upon by the Applicant maintains that the right to work is intrinsically associated with the realisation of human dignity and the development and recognition of the individual within the community.[5]

After recognising that the entitlement of non-citizens to rely upon the provisions of the Constitution has been inconclusively debated since the case of The State (Nicolaou) v An Bord Uchtála and that no comprehensive or accepted theory regarding the matter has been advanced,[6] O'Donnell J held that the Supreme Court should not reach a decision on the matter by judicial fiat or by reaching a conclusion sub silentio which conformed to the established position whereby non-citizens may rely upon a constitutional provision, where that provision is not substantially associated with the concept of citizenship.[7] O'Donnell J held that persons who were not citizens of Ireland were entitled to avail of Constitutional rights, where those rights concerned their human personality. Moreover, O'Donnell J held that the right to work, in the sense of freedom to work and to seek employment is a right which forms part of the human personality.[8]

In a carefully considered and balanced judgement, O'Donnell J maintained he could not “accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time from asylum seekers’.[9] Appertaining to O'Donnell J's judgement in NHV, it follows that the principal criticisms of the legal provisions of the Refugee Act s 9(4)(b) are the absolute nature of the prohibition of employment conjoined with the undefined period of time that may elapse in processing the application for refugee status in the State and in consequence, the undefined period of the blanket prohibition of employment. In the concluding paragraph of his judgement, O'Donnell J held that ‘in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s 9(4) (and re-enacted in s 16(3)(b) of the 2015 Act) is contrary to the constitutional right to seek employment’.[10]

Bryan McMahon published a report to the Oireachtas wherein recommendations were detailed to address, inter alia, criticisms of s 9(4)(b).[11] McMahon observed the ‘human costs’ associated with s 9(4)(b), including the obsoletion of skills and the creation of dependency.[12]  The report respects that the ban on employment denies the applicant a sense of personal autonomy and an effective control of their own life, while preventing the realisation of the applicant's physical, mental and personal integrity. McMahon hence maintains those applicants in Direct Provision for a time greater than nine months ought to be granted access to the labour market, under the provisions of the European Union Recast Reception Conditions Directive.[13] McMahon also holds that an applicant who is successful in entering the labour market and wishes to remain in Direct Provision ought to be subjected to a means test, in determining a suitable contribution to the services and goods provided to them.[14] Applicants who are successful in entering the labour market would also be obliged to pay incomes taxes, while equally being granted access to social protection schemes.[15]

The judgement of NHV should be held as a judgement of general public importance, with respect to O'Donnell J's decision that non-citizens may be entitled to rely upon the provisions of the Constitution, where those provisions affect the human personality. This judgement may also elicit a further revision of the provisions of s 9(4)(b), which may allow for asylum seekers to have the capacity to pursue a sense of autonomy and societal integration through the labour market.


[1] NHV v Minister for Justice & Equality [2017] IESC 35 (NHV), [2017].

[2] Ibid [18] (O’Donnel J).

[3] Ibid [13], [16].

[4] European Union, ‘Charter of Fundamental Rights of the European Union’ 2012/C 326/02 , art15(1).

[5] UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights’ 16 December 1966, 993 UNTS 3[1].

[6] [1966] IR 567

[7]  NHV (n 1) [11].

[8]  Ibid [17].

[9] Ibid [19].

[10] Ibid [21].

[11] Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (2015).

[12] Ibid [5.43].

[13] Ibid [5.51].

[14] Ibid [5.49.3].

[15] Ibid [5.52].

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Case update: Simpson slopping out case granted leapfrog appeal

Case update: Simpson slopping out case granted leapfrog appeal

Alan Eustace - Trinity College Dublin, Law & French

In this year’s print edition of the TCLR, this author examined whether conditions within the Irish prison system, in particular conditions of sanitation and healthcare provision, are compliant with the Constitution – see Alan Eustace, ‘Bunreacht Behind Bars: The Irish Prison System in its Constitutional Context’ (2018) 21 Trinity College Law Review 89.

That article examined, in part, the recent landmark decision of the High Court in Simpson v Governor of Mountjoy Prison [2017] IEHC 561. The plaintiff alleged that the slopping out regime in Mountjoy’s protective wing was a violation of several constitutional rights, including privacy, bodily integrity, dignity, and not to be subject to inhuman or degrading treatment. White J in the High Court made a number of informative comments on the constitutional position with respect to inhuman or degrading treatment. First, it is an absolute right: ‘You cannot have proportionate torture or inhuman or degrading treatment’, although the severity of the treatment may be relevant in determining if it constitutes a breach of rights.  Second, he held that the intention of the prison authorities is merely one factor in determining whether inhuman or degrading treatment has occurred, and that it is unnecessary to find such intention if the treatment ‘attains an appropriate threshold of severity’. This author argued in the print edition that Simpson may have finally exorcised the troubling ‘evil purpose’ test from Irish law, as had been set down by Finlay P in State (C) v Frawley [1976] IR 365:

I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge, retaliation, the creation of fear or improper interrogation.

A requirement of such malicious intent is not to be found in the jurisprudence of the European Court of Human Rights (see, for example, Peers v Greece app no 28524/95), nor in modern academic commentary. The print edition article welcomed White J’s departure from the outdated ‘evil purpose’ test.

On the facts, however, White J found that the slopping out regime in Mountjoy did not amount to torture nor to inhuman or degrading treatment. He held, rather, that the regime constituted a breach of the plaintiff’s right to privacy, although he refused to award the plaintiff damages for this breach due to the latter’s conduct in giving evidence.

The plaintiff sought leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution. Although the State did not oppose the leave application, the Supreme Court directed an oral hearing be held on 20 June 2018. In a written judgment given 27 June, the Court granted leave to appeal, considering that a determination of the threshold for inhuman or degrading treatment is clearly a point of law of ‘general public importance’ for the purposes of Article 34.5.4:

It seems to this Court that the following general issues which potentially arise in this case do meet the broad constitutional threshold. First, there is the question of the overarching principle by reference to which it must be determined that treatment of a prisoner can be regarded as inhuman and degrading. In that context, other issues potentially arise as to the extent to which, in reaching an overall assessment as to whether treatment has been inhuman and degrading, the Court can take into account the circumstances pertaining to the relevant prisoner’s detention. Undoubtedly, any final assessment as to whether the existence of inhuman and degrading treatment has been established in a particular case will necessarily be somewhat fact specific. However, the Court is satisfied that a broad issue, of more general application, clearly arises as to the factors which can and should be taken into account in reaching an assessment as to whether such treatment has been established.

Furthermore, the Court noted the urgency of a final determination of the legal principles in this area, given the volume of similar cases pending before the courts:

[T]he Court was informed by the parties that in excess of 1,600 cases involving contentions, which are at least broadly in the same category as those which arise in these proceedings… [T]he current view of the judge in charge of the relevant High Court list was that he would not list any other cases for hearing until such time as any appellate process in this case had completed. It was acknowledged, of course, that that situation might change in the event that a lengthy period of time were to elapse before this case concluded. However, it is entirely understandable that the High Court would not wish to waste resources in trying cases where the basis on which the case was tried might turn out to be inaccurate in some respect in the light of the final determination of relevant legal principles which might result from this case.

The Court ordered that documents be filed by 18 July, and a case management hearing be held shortly thereafter. This hearing was listed for 24 July before MacMenamin J.

In light of the criticisms levelled at the ‘evil purpose’ jurisprudence in the print edition article, it is to be welcomed that the Supreme Court is to engage again with the constitutional understanding of inhuman or degrading treatment. The High Court’s finding on this point was, thankfully, more in line with ECtHR jurisprudence and modern penological thinking in this area. It is hoped that the Supreme Court uphold White J’s view that malicious intent on the part of the prison authorities is not required for conditions of imprisonment to amount to inhuman or degrading treatment. As for the question of whether the plaintiff’s detention met the threshold for inhuman or degrading treatment, the Court is likely, of course, to defer to White J’s view of the facts. However, if the Court lowers the threshold for inhuman or degrading treatment applied in the High Court, then the finding on this point may have to be revised. Any such change will have an enormous impact on the many pending slopping out cases. Until the Supreme Court finalises the law in this area, then, it seems these plaintiffs remain prisoners to fortune.

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All Hail Public Inquiries! Long May They Reign?

All Hail Public Inquiries! Long May They Reign?

Jack Lyons - University College Cork, Law (International)

Introduction

Following the Mahon Report, the Irish public thought they had bid farewell to the era of public inquiries. ‘We’ll not see your likes again. Thankfully.’ wrote Michael Clifford on the contentious issue of public inquiries reigning for decades in the Irish domain.[1] However, February 2018 marked the one-year anniversary since the commissioning of yet another public inquiry, the Disclosures Tribunal[2], concerning the alleged smear campaign of sergeant Morris McCabe. With public inquiries prominent once again, and daily developments from the Disclosures Tribunal encasing the realm of Irish media, it is worth re-evaluating the often negative and reductionist interpretation of the functioning of these multifaceted beings. Prominent lawyers such as David Allen Green have taken a pejorative approach to public inquiries in recent times, stating that every inquiry is ‘an implicit admission of the failure of existing state institutions’.[3] This offers a cynically biased perspective which depicts public inquiries functioning in the narrowest of terms. It omits what these inquiries provide in terms of substantive policy and administrative reform. On the other hand, it is imperative to address the ‘paradoxical’ legitimacy argument concerning the authority of an inquiry being ‘the flip-side of the lack of legitimacy of the public bodies which are already there.’[4] This relates primarily to the Executive and Legislature. The proliferation of public inquiries in the past two decades are indicative of the weaknesses of parliamentary structures.[5]

This article shall examine the operation of public inquiries in Ireland by assessing their roles in two distinct sections. This author will first briefly convey how inquiries are not merely an implicit admission of the failure of existing state institutions but are in fact a systematic progression towards institutional refinement by means of considering broad questions of policy, implementation, and political frameworks. In conjunction with this, it is further argued that the employment of public inquiries is necessary as the issues they address are often deeply political and require impartiality. Public inquiries ensure political accountability to avoid alleviation of guilt for purposes of self-preservation. Nonetheless, their prolonged reign in the Irish politico-legal landscape to date infers how our political system is alarmingly incapable of addressing these fundamental problems independently, subsequently confirming the above-mentioned legitimacy paradox. So long as impotent parliamentary structures go unreformed, the lengthy reign of public inquiries shall be perpetuated.

An Implicit Admission of Institutional Failure, or an Explicit Effort Towards Improving Administrative Oversight and Institutional Refinement?

This author provides that it is an inaccurate assumption to presume that a mechanism developed for the sole purpose of investigating facts and failings in order to provide core recommendations for avoiding future mistakes, is simply an admission of the failings of existing state institutions. In contradiction to this defeatist view that inquiries exist due to a failure within an existing state institution, it is necessary to invoke their broader function- that every inquiry is an explicit effort towards improving and regulating administrative oversight within these institutions. As Elliott succinctly provides, public inquiries present ‘the facilitation of lesson-learning by means of analysing the relevant issues and formulating proposals for reform in areas ranging from substantive policy and administrative practice to an institutional design and interaction.’[6]

The impact of tribunals recommendations on administrative oversight and institutional refinement in Irish institutions has been vast per MacCarthaigh.[7] An interim report in 2004 by the Morris Tribunal also significantly developed the appraisal of methods for overseeing police workings of An Garda Síochana in Ireland.[8] While both the Mahon and Moriarty Tribunals did not produce fundamental shifts in the administration of systems, it did produce some shifts and understandings on how procedures can be improved. It shone light on spaces not publicly highlighted before.  The dual-powers of the Moriarty and Mahon Tribunal have led to amendments to the 1995 Ethics in Public Office Act[9] in tandem with new codes of conduct for public representatives.[10] One need only review the success of the Lindsay Tribunal to be aware of how public inquiries in Ireland have been responsible for the establishment of several regulatory bodies, such as the National Haemophilia Council, which improves the administration of healthcare in Ireland.

These are but some of the examples of successful public inquiries’ recommendations forming part of a systematic effort for refining the administration and regulation of existing state institutions. Beer suggests mechanisms to be adopted in this area in order to ensure the implementation of these recommendations leading to reform.[11] This author wishes to highlight the most vital mechanism divulged; audit systems deployed to examine at a later stage to what extent the recommendations are enforced.[12] In failing to have audit systems in place, we risk inquiries regressing into implicit admission of the failure of existing state institutions without bearing any actual reforms.

Lack of Trust, and Legitimacy in Public Bodies- Two Unfortunately Harmonious Elements

It seems that if something is a matter of ‘public interest’,[13] then it should be dealt with by the political system. There is a degree of cynicism in the modern political era regarding the ability of political actors to deal with these issues in a non-partisan and efficient manner. Oireachtas committees seem a worthy contender for carrying out this task. Yet, Donson and O’Donovan note how fear of proximity to the State underlying the Oireachtas mechanism disrupts this.[14] When members of the Executive and their counterparts act as the perpetrators, there is perhaps little chance of bringing themselves to account or at least little public faith in this being done. As the saying goes, turkeys do not vote for Christmas. This presumption of political self-preservation thus requires impartiality in the form of a judicial figure leading a public inquiry to ensure effective accountability.[15]

However, it is not solely this lack of trust in our political actors that provokes the public not wishing to have those who should deal with the identified problem to do so. A correlation exists between this lack of trust, and the inherent weaknesses of the public bodies in place i.e. the parliamentary systems. They are unfortunately harmonious. Flaws in the legitimacy of public inquiries become apparent when examining issues assessing workings within the political realm, such as the Mahon Tribunal compared to the Stardust Tribunal. Although the effect of public inquiries is to develop policy reforms regarding institutional failure and administrative oversight of public bodies, their independence and expertise does raise the question of why the Executive and the Legislature cannot achieve this.

It is submitted that the rapid proliferation of public inquiries is representative of the fundamental flaws within the current parliamentary system in Ireland in dealing with issues addressed by public inquiries.[16] The Beef Inquiry links the paradoxical legitimacy argument exhumed at the exposition of this article as it provides cause for tribunals of inquiry due to weak parliamentary oversight mechanisms. Hamilton CJ claimed at the Beef Tribunal that ‘[I] think if the questions that were asked in the Dáil were answered in the way they are answered here, there would be no necessity for this inquiry and an awful lot of money and time would be saved.’[17] This explicitly exemplifies the flip-side of the legitimacy of public bodies and inquiries. Parliamentary debate subsequent to the Finlay Tribunal’s offers reaffirms this inconsistency:

Why was this information revealed in a tribunal as distinct from Dáil Eireann? The answer is that the Dáil failed because it was misled by Ministers who, in turn, were misled by State authorities. The Dáil failed in one of its primary functions, to hold the Government of the day accountable for its stewardship of State authorities, and this is very dangerous.[18]

Although there will always be the risk ‘that proceedings will be undermined by party-political scoring’[19] due to the very nature of the parliamentary process, it seems that we may have abandoned the executive and legislative organs of state to deal with these issues, particularly political accountability. The Executive has the resources to monitor its officials and to make effective policies, and there are in place independent inspectors and complaints commissioners. This can ‘negate impact on accountability’[20] as the Legislature can hold the Executive to account, and through its committees it can obtain evidence and have public hearings.[21] Yet, its effectiveness in practice has proven weak. This legitimises the relevant independence and expertise of public inquiries. MacCarthaigh notes how ‘[t]he recurring theme of recent tribunals of inquiry has been that parliamentary procedures such as Question Time and adjournment debates have failed in their role of assessing the Executive.’[22] Concerning political actors, the very need to set up the Beef Tribunal or the Moriarty Tribunal demonstrates how parliamentary mechanisms are ‘virtually impotent’ in terms of eliciting information from members of the government.[23] The fact that public inquiries are ‘typically only used ... when other agencies of investigation have failed to work or are unlikely to work.’[24], delivers a bleak image of parliamentary mechanisms in light of inquiries widespread use. This article calls for urgent parliamentary reforms in order to allow established public bodies in the political system to regain credibility, and deal with these issues in the absence of public inquiries.

Concluding Remarks

Following the commissioning of the Disclosures Tribunal, it appears that public inquiries are here to reign supreme for the time being. This may have positive implications when one considers the arguments this article has expanded in terms of public inquiries working as a systematic progression towards institutional refinement by means of considering broad questions of policy and administrative oversight, implementation and political frameworks. However, as public inquiries are ‘often a procedure of last resort, to be used when nothing else will serve to allay public disquiet, usually based on sensational allegations, rumours or disasters’[25], their continuous endorsement heightens the paradoxical issue discussed throughout this article, surrounding the legitimacy of a public inquiry. They infer how our political system is gravely incapable of addressing these fundamental problems independently. Once the reign of the Disclosures Tribunal ends, it is vital that we seek structural reforms within the politico-legal sphere to overthrow this heavy reliance on public inquiries, and to bolster a clearly illegitimate political system lacking in integrity.

 

[1] M Clifford ‘Farewell to Tribunals’ Irish Examiner (Dublin 1 January 2013) 6.

[2] Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters. Established by the Minister for Justice and Equality under the Tribunals of Inquiry (Evidence) Act 1921, (17 February 2017).

[3] David Allen Green ‘Are Inquiries a Bad Thing?’ (Financial Times, 4 November 2014) https://www.ft.com/david-allen-green/2014/11/04/are-inquiries-a-bad-thing/?

[4] ibid.

[5] G Mitchell, By Dáil Account: Auditing of Government, Past, Present and Future, (Dublin: Institute of Public Administration 2010)

[6] M Elliott, Ombudsmen, Tribunals, Inquiries: Re-Fashioning Accountability Beyond the Courts (August 22, 2012). University of Cambridge Faculty of Law Research Paper No. 21/2012. Available at SSRN: https://ssrn.com/abstract=2133879 or http://dx.doi.org/10.2139/ssrn.2133879.

[7] M MacCarthaigh, Accountability in Irish Parliamentary Politics, (Dublin: Institute of Public Administration 2005).

[8] A Morris, Tribunal of Inquiry into complaints concerning some Gardaí of the Donegal Division (The Stationary Office, Dublin 2008).

[9] 1995 Ethics in Public Office Act.

[10] Supra note 4 225.

[11] J. Beer QC, Public Inquiries (Oxford University Press, Oxford 2011)

[12] ibid.

[13] Tribunals of Inquiry (Evidence) Act 1921 s.2 (a).

[14] F Donson and D O’Donovan, Law of Public Administration in Ireland, (Clarus Press Dublin 2014) [5-04].

[15] I Steele, ‘Judging Judicial Inquiries’ (2004) PL 738-749 740.

[16] Supra note 4.

[17] F O’Toole, Meanwhile Back at the Ranch (Vintage, London 1995) 241.

[18] Dáil Debates, 20 March 1997, Vol. 476, Col. 1261.

[19] S Sedley QC, ‘Public Inquiries: A Cure or a Disease?’ (1989) 52 MLR 469 475.

[20] Supra note 7 [5-14].

[21] Supra note 1.

[22] Supra note 4 216.

[23] ibid.

[24]A Mahon, Tribunal of Inquiry into Certain Planning Matters and Payments (The Stationary Office, Dublin 2012) 22.

[25] H WR Wade and CF Forsyth, Administrative Law (10th ed Oxford University Press, Oxford 2009) 824.

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Direct Provision: the implications of N.H.V. v Minister for Justice and Equality

Direct Provision: the implications of N.H.V. v Minister for Justice and Equality

Marie O'Reilly - JF Law

“Work offers dignity and the best means of integration, and reduces the cost to the State”

-A person living in Direct Provision expressing their desire to work[1]

Introduction

On May 30th, 2017, the Supreme Court ruled in favour of a Burmese man’s appeal over the blanket ban preventing asylum seekers to work or seek entrance to the labour market. This judgment, N.H.V. v Minister for Justice and Equality, represents a revolutionary but long overdue departure from the current legislative positions. This article will outline the relevant legislation currently outlawing asylum seekers from working and argue that access to employment is a basic human right. It will examine the landmark case of N.H.V. v Minister for Justice and Equality, before setting out how the legislation currently being drafted is likely to be implemented. Finally, this article will critically analyse other attempted reforms to the asylum system, including Direct Provision, before concluding that this ruling is but the first step towards a fair and just system for migrants with pending asylum applications.

Current Legislation

The prohibition on employment is enforced by virtue of section 9(4) of the Refugee Act 1996 whereby an applicant shall not “seek or enter employment or carry on any business, trade or profession” before a decision is made with regards to their immigration application.[2] This legislation was reinforced with the promulgation of the International Protection Act 2015 which expressly prohibits the seeking of or entering employment under section 16(3)(b).[3]

Ireland and Lithuania are currently the only two EU member states, which unequivocally prohibit employment during the asylum procedure notwithstanding the duration of time spent awaiting a verdict on their application.[4]

Basic Human Right

Access to the labour market is intrinsic to personal freedom, self-determination, and human dignity, while the adverse consequences of prohibition from employment are innumerable. This interdiction engenders self-depreciation, stagnation, and social exclusion. The prolongation of prevention from access to the labour market can cause an individual’s skills to become obsolete or can result in a lack of confidence and sense of worthiness which act as further barriers to gaining employment when the prohibition is revoked. The HSE has conducted qualitative research into the negative impacts of denying employment to individuals living in Direct Provision, and ascertained a positive correlation between prolonged idleness, which is a concomitant to unemployment, and mental health and psychological problems.[5]

Accordingly, the right to work appears as a fundamental human right in the framework of many international agreements such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter, and relevant International Labour Organisation Conventions.[6] For example, Article 23(1) of the UDHR states that “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”[7] Ireland’s current blanket ban on the right of asylum seekers to work or seek employment  therefore appears to be  in breach of these international agreements.

The Irish Constitution acknowledges that people living in Ireland have certain fundamental personal rights, not all of which are expressly stated in the Constitution, but may be implied or derived from it.[8] Indeed, it was in finding that the interdiction was “in principle” unconstitutional that the Supreme Court unanimously ruled in favour of the Applicant in the N.H.V. case, in relation to the outright ban on the right of asylum seekers to work while their immigration applications are pending.

N.H.V. v Minister for Justice and Equality

The applicant in this case, a Burmese citizen, arrived in the State on July 16th, 2008, and made an application for refugee status the following day. In 2009, his application was rejected at first instance, and again on appeal by the Refugee Appeals Tribunal. The challenge to this decision failed in judicial review proceedings in July 2013 and again in February 2014.[9]

In 2013, the applicant received an offer of employment and applied to the Minister for Justice and Equality for permission to accept the offer. The Minister refused to grant permission, stating that he was precluded from doing so under section 9(4) of the Refugee Act 1996. N.H.V. then instituted proceedings in the High Court, challenging the interpretation of section 9(4), and pursuing a declaration of the incompatibility of the section with the Charter of the European Union, the European Convention on Human Rights, and the Irish Constitution.[10]

The Supreme Court found that, as the current asylum processing system has no statutory time limit for an application to be decided upon, the “absolute prohibition” on asylum seekers to seek access to the labour market is contradictory to the constitutional right to attempt to obtain employment.[11]

The judgment centred on the degree to which non-citizens, as “human persons,” are eligible for protection under constitutional rights. O’Donnell J distinguished between constitutional rights attached to citizenship, such as the right to vote, and rights that all those in the state, notwithstanding their immigration status, are free to avail of as “human persons.”[12] He stated in his judgment that the freedom to work, or seek employment, is an innate “part of the human personality.”[13]He continued that under the court’s interpretation of Article 40.1 of the Constitution, aspects of rights which were part of the human personality could not be indefinitely precluded from non-citizens, and held that the right to work was an unenumerated right derived from the Constitution, and therefore could be enjoyed by non-citizens.[14]

Implementation of new legislation

 

This landmark judgment concluded with the court confirming adjournment from making any formal orders for a period of six months to allow the enactment of new legislation by the legislature, who would have to decide how to address the situation.[15] The judgment was delivered on May 30th 2017, exactly six months to date, and the declaration of a new order in relation to this issue is eagerly anticipated.

 

The government has been urged by many lobbyists and working groups that the best way to proceed is to align Ireland’s asylum system with other Member States as a member of the Common European Asylum System. It could efficiently do so by opting in to the recast Reception Conditions Directive which sets minimum standards for the reception of asylum seekers.[16] This Directive recommends that asylum seekers be granted access to the labour market after a maximum period of nine months without first instance determination on their refugee or subsidiary protection applications,[17] where the delay is not attributed to the applicant. Member States implement the Directive in a discretionary manner; several States affix restrictions to the right to work,[18] while other member states permit employment before the nine month benchmark- such as Greece and Sweden, which accord immediate labour market entrance to asylum seekers, and Germany, where the right to employment is acquired two months subsequent to submission of an application for refugee or subsidiary protection status.[19]

The Irish Refugee Council has recommended in their policy paper regarding the right to work for international applicants that access to the labour market for asylum seekers should be granted no longer than six months after an application is submitted to the IPO. This proposed timescale is deduced from the fact that it is the same period after which an asylum seeker may request information from the IPO as to when a recommendation will be made on their application, under Section 39 (5) of the International Protection Act 2015.[20] The UNHCR also endorses this recommended six-month benchmark.

Conditions and Restrictions

The IRC has also called for no conditions or restrictions to be attached to the right to work “such as restricting it to particular professions or sectors or that people cannot be self-employed.”[21] Nevertheless, it has already become apparent that the right of asylum seekers to enter the labour market will be impeded by a number of limitations administered by the government.

It is probable that access to work will only be permitted in certain “restricted sectors of employment.”[22] A government spokesperson attempted to repudiate claims that such an action would be discriminatory by highlighting the current “relatively low” level of unemployment in Ireland in an endeavour to justify the government’s alleged plans to only permit access to work in areas where there are increasing levels of unemployment.[23] This would assuredly signify severely limited, if not unattainable access to sectors such as health. While the Supreme Court ruling in N.H.V. v Minister for Justice and Equality found the right to work an integral part of human dignity and freedom under the Constitution, these restrictions would infringe, yet again, on these unenumerated rights.

Furthermore, regardless of an asylum seeker’s work status, they will remain obliged to stay in Direct Provision.[24] This will pose an additional array of difficulties, in that employment will have to be secured a reasonable distance from Direct Provision residences.

Other Reforms to the Asylum System

It is widely acknowledged that applications for international protection in Ireland are subject to a severe processing delay, spanning months and even years. The paramount factor for this backlog was the split system in processing applications[25], but this was reformed earlier this year, on January 3rd, with the promulgation of the “single procedure” under the International Protection Act 2015. This new legislation permits applications for refugee status and subsidiary protection in one application, with the intention of drastically reducing the time spent by asylum seekers in Direct Provision.[26] While the UNHCR has welcomed the approach, it must be acknowledged that it will take a while for the system to be effectively applied retrospectively, taking a considerable amount of time to clear the backlog of applications.

C.A and T.A. (a minor) v Minister for Justice and Equality

The living conditions in Direct Provision centres have been a topic of controversy since their establishment in April 2000. The inhabitants are given a meagre weekly allowance of only €19.10 a month, an amount which has remained unchanged over seventeen years despite recommendations from a number of working groups.[27]

In 2014, C.A. and T.A. (a minor) v Minister for Justice and Equality saw a challenge to the Direct Provision System on a number of grounds. The applicants were successful in several of their claims: some of the house rules of Direct Provision centres including unannounced room inspections, monitoring of presence, requirement to notify intended absences and rules against having guests in bedrooms, and the complaints handling procedure were declared unlawful.[28] The Irish Immigrant Support Centre expressed their disappointment that the paltry weekly payment, and the operation of Direct Provision as a whole were not deemed unlawful.[29]

Interestingly, Mr Justice Colm McEochaidh said that while the applicant’s claim was “doomed”, it was not because the proposition that Direct Proposition was in breach of Human Rights was false, but because the applicants had failed to provide oral evidence and had not cross-examined the witnesses for the opposition.[30]

Conclusion

The current system is undoubtedly fundamentally flawed, but with several aspects of Direct Provision declared unlawful in recent years, a departure from the “multi-layered” process, and new legislation presently being enacted to grant asylum seekers access to the labour market, it finally appears as though the Irish Government has realised the system is in need of reform. Although major alterations are still required, these may act as a prerequisite for further actions. The order due to be delivered will have major implications for those currently living in Direct Provision. An equitable, more just system is eagerly anticipated by asylum-seekers and human rights advocates alike.

[1] ‘Government must opt into EU Directive on asylum seekers’ The Irish Times https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[2] Refugee Act, 1996 http://www.irishstatutebook.ie/eli/1996/act/17/enacted/en/print.html

[3] Human Rights in Ireland- Asylum seekers and the right to work: The Supreme Court Decision http://humanrights.ie/economic-rights/asylum-seekers-and-the-right-to-work-the-supreme-court-decision/

[4] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[5] Ibid

[6] Ibid

[7] Universal Declaration of Human Rights http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[8] Citizen’s Information- Fundamental Rights under the Irish Constitution http://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_fundamental_rights.html

[9] N.H.V v Minister for Justice and Equality and ors [2017] IESC 35 http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/bba87f6e90ea3c5d80258130004199fe?OpenDocument

[10] Ibid

[11] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[12] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[13] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[14] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[15] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[16] https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[17] http://humanrights.ie/immigration/direct-provision-still-under-the-spotlight/

[18] Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers Final Report June 2015 http://www.justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf

[19] Irish Refugee Council Policy Paper: The Right To Work For International Protection Applicants July 2017 http://www.irishrefugeecouncil.ie/wp-content/uploads/2017/07/IRC-Right-to-Work-Policy-Paper-30.06.17.pdf

[20] Ibid

[21] Ibid

[22] https://www.irishtimes.com/news/social-affairs/ministers-to-approve-work-rights-for-asylum-seekers-1.3278384

[23] http://www.thejournal.ie/asylum-seekers-work-3709670-Nov2017/

[24] Ibid

[25] Irish Refugee Council Proposal: Proposal For A One-Off Scheme To Clear The Backlog Of People In The Protection Process Before The Introduction Of A Single Protection Procedure http://www.irishrefugeecouncil.ie/wp-content/uploads/2014/12/PROPOSAL.pdf

[26] Rule change should lead to less time in Direct Provision Centres for asylum seekers http://www.thejournal.ie/asylum-seekers-system-3168088-Jan2017/

[27] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[28] http://humanrights.ie/tag/c-a-and-t-a-a-minor-v-minister-for-justice-and-equality/

[29] Direct Provision is legal, but some of its rules are not, says High Court https://www.independent.ie/irish-news/courts/direct-provision-system-is-legal-but-some-of-its-rules-are-not-says-high-court-30746605.html

[30] Mother and Son lose challenge against Ireland’s Direct Provision for asylum seekers https://www.independent.ie/irish-news/courts/mother-and-son-lose-challenge-against-irelands-direct-provision-for-asylum-seekers-30744915.html

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